CHAUNCY TUDOR v. JOHN GRAY PONTIAC BUICK GMC TRUCKS, INC.
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001580-MR
CHAUNCY TUDOR
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN FRAZIER, JUDGE
ACTION NO. 96-CI-00069
JOHN GRAY PONTIAC BUICK GMC TRUCKS, INC.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and McANULTY, Judges.
COMBS, JUDGE: The appellant, Chauncy Tudor, appeals a default
judgment in favor of appellees, John Gray Pontiac Buick GMC
Trucks, Inc., entered on June 5, 1998, by the Johnson Circuit
Court based upon the appellant’s failure to comply with a court
order requiring him to obtain new counsel within thirty days.
The appellant argues that the entry of default judgment was
erroneous under the circumstances of the case.
We agree and
vacate and remand for further proceedings.
A complaint was originally filed by John Gray Pontiac
Buick GMC Trucks, Inc., (Gray) on February 22, 1996, alleging
that Chauncy Tudor (Tudor) had deceived Gray as to the value of a
traded boat and the existence of a lien upon its title.
An
answer and counterclaim were filed by Tudor on March 18, 1996.
Over the course of the next sixteen months, both sides engaged in
a long course of pre-trial activity.
During that period, counsel
for both parties made motions to withdraw.
Gray obtained new
counsel, and the parties proceeded accordingly.
By agreed order of January 23, 1997, a trial date was
set for June 10, 1997.
However, on June 3, 1997, a motion to
continue was filed by Tudor’s attorney.
The record also reflects
that on July 11, 1997, Tudor’s attorney filed a motion to
withdraw.
The court’s order of August 14, 1997, granted Tudor
“thirty (30) days in which to secure additional counsel and have
counsel enter his appearance in the case.”
Subsequently, on
September 7, 1997, Gray filed a motion for default judgment,
citing Tudor’s failure to obtain new counsel as its basis.
Despite recitations to the contrary in Gray’s brief,
our careful search of the record does not reveal that notice was
given to Tudor or his attorney regarding the motion for default
judgment nor was notice sent as to when that motion was to be
heard.
On October 1, 1997, when the trial court orally granted
Gray’s motion for default judgment, neither Tudor nor his
attorney was present; Tudor contends that neither had been given
notice.
On October 10, 1997, Tudor’s original counsel entered a
notice of re-entry.
Gray followed with a "notice of filing" on
October 30, 1997, which gave notice of the filing of an affidavit
in support of damages and the "proposed" default judgment to
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Tudor’s counsel.
However, this notice occurred some thirty days
after the court had orally granted the default judgment; the
affidavit apparently purported to substantiate and bolster claims
that had been the subject matter of the default judgment.
Although the judgment orally granted on October 1,
1997, had not yet been entered of record, Tudor’s counsel filed a
motion to vacate or set aside the default judgment on November 5,
1997.
Little action followed other than two filings of a motion
for a rule by Gray.
Finally, on June 5, 1998, the default
judgment was entered of record by the trial court.
Tudor argues on appeal that the trial court abused its
discretion by entering a default judgment in favor of Gray.
The
standard of review of the propriety of a default judgment is
whether the trial court abused its discretion.
Greathouse v.
American National Bank and Trust Co., Ky.App., 796 S.W.2d 868,
(1990) citing Nowicke v. Central Bank & Trust Co., Ky.App., 551
S.W.2d 809 (1977).
In reviewing a default judgment for abuse of
discretion, appellate courts search the record for indicators
that essentially would demonstrate that the court had no other
recourse than entry of what is tantamount to civil capital
punishment.
Whether the party dismissed was warned that
noncompliance could lead to dismissal and whether less drastic
sanctions were ever considered or imposed are both relevant
factors.
Id.
The record of this case does not reveal that
either of these alternative courses preceded entry of the default
judgment.
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It is virtually a maxim that default judgments are not
favored in the law since they truncate the opportunity for
litigants to have their cases decided on the merits.
Barlow, Ky.App. 729 S.W.2d 464 (1987).
Dressler v.
It is certainly
understandable that aggravating omissions and procrastination by
both of the parties and their counsel may often drive a trial
court to the drastic action of entry of a default judgment.
Appellee correctly contends that CR 55.01 permits a court to
enter a default judgment against a party for noncompliance with
court orders.
Appellee then cites a considerable litany of
Tudor’s failures to comply with court orders.
It is not
surprising that the court resorted to such an ultimate sanction.
However, we are seriously concerned with the fact that
appellant did not receive notice of the filing of the September
9, 1997, motion for default judgment; nor did he or his counsel
receive notice of the hearing of October 1, 1997, at which that
motion was heard and the judgment was orally granted.
Although
there is some dispute between counsel on this point, we have
scoured the record and have found no trace of compliance with the
notice requirement in this case.
Giving of notice is a
fundamental component of due process, and its importance looms
even larger where the specter of a default judgment is at issue.
If the party against whom judgment by
default is sought has appeared in the action,
he, . . . shall be served with written notice
of the application for judgment at least
three (3) days prior to the hearing on such
application. (Emphasis added.)
CR 55.01.
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The language of the rule is clearly mandatory.
The
proper question to determine if a party has entered an appearance
is "whether or not he has so participated in the action as to
indicate an intention to defend."
495, 498 (1955).
trial court.
Smith v. Gadd, Ky., 280 S.W.2d
The appellant here had appeared before the
He filed an answer to the complaint and
participated in other pre-trial activity in a manner sufficient
to demonstrate his intent to defend the action against him.
Thus, CR 55.01 is a bar to entry of default judgment
where the party defended the action and had not been given notice
prior to the hearing.
"The court’s entry of default judgment . .
. having been obtained without notice to the appellant, is void
as a matter of law."
(1988).
Kearns v. Ayer, Ky.App., 746 S.W.2d 94, 95
We are compelled, therefore, to vacate the default
judgment in this case.
The appellant raised other issues to be considered on
appeal.
However, those issues need not be addressed as they are
moot in light of our ruling.
For the forgoing reasons, the default judgment of the
Johnson Circuit Court is vacated, and this matter is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Cumbo
Inez, KY
David H. Neeley
Prestonsburg, KY
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